Citation Nr: 0534652
Decision Date: 12/23/05 Archive Date: 01/10/06
DOCKET NO. 04-22 105 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to an increased initial disability rating for
hearing loss.
2. Entitlement to service connection for apical lung
scaring.
REPRESENTATION
Appellant represented by: Tennessee Department of
Veterans' Affairs
ATTORNEY FOR THE BOARD
M. Chisick, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1968 to
November 1970 and from November 1990 to June 1991.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2003 rating decision of the
Nashville, Tennessee Regional Office (RO) of the Department
of Veterans Affairs (VA), which granted the veteran's claim
for entitlement to service connection for bilateral hearing
loss with an initial disability rating of 0 percent and
denied the veteran's claim for service connection for apical
lung scarring.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained and the
veteran has received the required notice.
2. The veteran manifests Level II hearing in the right ear
and Level I hearing in the left ear.
3. Apical lung scarring was not incurred in service, and
there is no competent medical evidence to indicate that mild
chronic obstructive pulmonary disease was incurred in or
aggravated by active military service.
CONCLUSIONS OF LAW
1. The criteria for an initial rating greater than 0 percent
for service-connected hearing loss is not warranted. 38
U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38
C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85, 4.86. 4.87, Diagnostic
Code 6100 (2005).
2. The criteria for the establishment of service connection
for apical lung scarring or chronic obstructive pulmonary
disease are not met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304,
3.306 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duty to Notify and Assist
Prior to proceeding with an examination of the merits of the
claims, the Board must first determine whether the veteran
has been apprised of the law and regulations applicable to
this matter; the evidence that would be necessary to
substantiate the claims; and whether the claims have been
fully developed in accordance with the Veterans Claims
Assistance Act ("VCAA") and other applicable law. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2005).
The VCAA provides that VA shall apprise the claimant of what
evidence would substantiate the claim for benefits and
further allocate the responsibility for obtaining such
evidence. The VCAA further provides that VA will make
reasonable efforts to assist a claimant in obtaining evidence
necessary to substantiate a claim for a benefit under a law
administered by the Secretary, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. In part, the VCAA specifically
provides that VA is required to make reasonable efforts to
obtain relevant governmental and private records that the
claimant adequately identifies to VA and authorizes VA to
obtain. The VCAA further provides that the assistance
provided by the Secretary shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary, as further defined by
statute, to make a decision on the claim. 38 U.S.C.A. §5103A
(2002).
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), it was
held, in part, that a VCAA notice, as required by 38 U.S.C.A.
§ 5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction decision (i.e.,
that of the RO) on a claim for VA benefits. In Pelegrini, it
was also observed that VA must (1) inform the claimant about
the information and evidence not of record that is necessary
to substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claims. This new "fourth element" of
the notice requirement comes from the language of 38 C.F.R.
§ 3.159(b)(1). It was also held in Quartuccio v. Principi,
16 Vet. App. 183 (2002) that VA must comply strictly with all
relevant provisions of the VCAA.
The Board finds that the VCAA notice requirements have been
satisfied by virtue of the letters sent to the veteran in
November 2002 and April 2003. The letters fully provided
notice of elements (1), (2) and (3). In addition, by virtue
of the rating decision on appeal, the May 2004 Statement of
the Case ("SOC"), the veteran was provided with specific
information as to why those particular claims were being
denied, and of the evidence that was lacking. With respect
to element (4), he was also supplied with the complete text
of 38 C.F.R. § 3.159(b)(1) in the May 2004 SOC.
In this case, the initial VCAA letters, including the
38 C.F.R. § 3.159(b) compliant language, were provided to the
veteran prior to the RO's initial denial of his claims.
Considering these notification letters, the Board finds that
he was aware that it was ultimately his responsibility to
give VA any evidence pertaining to this claim. The claimant
has been provided with every opportunity to submit evidence
and argument in support of his claim and to respond to VA
notices. He was given ample time to respond to the RO
letters.
There is no report from the veteran, or suggestion from the
record, that he has any evidence in his possession that is
needed for a full and fair adjudication of these claims or
that other evidence is existent and has not been obtained, as
detailed below.
VA has also made reasonable efforts to identify and obtain
relevant records in support of the claims. 38 U.S.C.A.
§ 5103A (a), (b) and (c). In particular, VA obtained service
medical records ("SMRs").
Pursuant to the duty to assist, VA is to provide a medical
examination as "necessary to make a decision on a claim,
where the evidence of record, taking into consideration all
information and lay or medical evidence [including statements
of the claimant]; contains competent evidence that the
claimant has a current disability, or persistent or recurrent
symptoms of disability; and indicates that the disability or
symptoms may be associated with the claimant's active
military, naval, or air service; but does not contain
sufficient medical evidence for the [VA] to make a decision
on the claim." Charles v. Principi, 16 Vet. App. 370 (2002);
38 U.S.C.A. § 5103A(d)(2). The veteran was afforded
audiological examination in April 2003.
However, with regard to the veteran's pulmonary disability
claim, there is no duty on the part of VA to provide a
medical examination, because as in Wells v. Principi, 326
F.3d 1381 (Fed. Cir. 2003), the veteran has been advised of
the need to submit competent medical evidence indicating that
he has the disorders in question, and further substantiating
evidence suggestive of a linkage between his active service
and the current disorders, if shown. The veteran has not
done so, and no evidence thus supportive has otherwise been
obtained. Here, as in Wells, the record in its whole, after
due notification, advisement, and assistance to the veteran
under the VCAA, does not contain competent evidence to
suggest that the disorder is related to the veteran's
military service.
Thus, the Board finds that VA has done everything reasonably
possible to assist the claimant. In the circumstances of
this case, additional efforts to assist the claimant in
accordance with the VCAA would serve no useful purpose. See
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which
would only result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran are to
be avoided). VA has satisfied its duties to inform and
assist the claimant at every stage of this case. Given the
development undertaken by the RO and the fact that the
claimant has not authorized VA to obtain any further evidence
to support his claim, the Board finds that the record is
ready for appellate review.
The Merits of the Claims
Initial Disability Rating for Bilateral Hearing Loss:
The veteran contends that his service-connected hearing loss
is more disabling than is contemplated by the currently-
assigned zero percent rating. Having carefully considered
the claim in light of the record and the applicable law, the
Board is of the opinion that the preponderance of the
evidence is against the claim and the appeal will be denied.
In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v.
Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the
service medical records and all other evidence of record
pertaining to the history of the veteran's service-connected
disability. The Board has found nothing in the historical
record that would lead to a conclusion that the current
evidence of record is not adequate for rating purposes.
Moreover, the Board is of the opinion that this case presents
no evidentiary considerations that would warrant an
exposition of the remote clinical history and findings
pertaining to the disability at issue.
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule) found in 38 C.F.R. Part 4. The Board attempts to
determine the extent to which the veteran's service-connected
disability adversely affects his or her ability to function
under the ordinary conditions of daily life, and the assigned
rating is based, as far as practicable, upon the average
impairment of earning capacity in civil occupations. 38
U.S.C.A.
§ 1155; 38 C.F.R. §§ 4.1, 4.10.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. 38 C.F.R. § 4.7.
Where, as here, a veteran's disability rating claim has been
in continuous appellate status since the original assignment
of service-connection, the evidence to be considered includes
all evidence proffered in support of the original claim.
Fenderson v. West, 12 Vet. App. 119 (1999).
The veteran's hearing loss disability is rated in accordance
with the provisions found at 38 C.F.R. §§ 4.85-4.87. Current
VA rating criteria for the evaluation of hearing loss
disability provide ratings from zero (noncompensable) to 100
percent, based on the results of controlled speech
discrimination tests together with the results of pure tone
audiometry tests which average pure tone thresholds at 1000,
2000, 3000, and 4000 Hertz. 38 C.F.R. §§ 4.85-4.87;
Diagnostic Codes 6100 to 6110. The evaluation of hearing
impairment applies a rather structured formula which is
essentially a mechanical application of the rating schedule
to numeric designations after audiology evaluations are
rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349
(1992).
In addition, when the pure tone threshold at each of the four
specified frequencies (1000, 2000, 3000, and 4000 Hertz) is
55 decibels or more, the rating specialist will determine the
Roman numeral designation for hearing impairment from either
Table VI or Table VIa, whichever results in the higher
numeral. 64 Fed. Reg. 25202-25210 (1999) (codified at 38
C.F.R. § 4.86). Further, when the average pure tone
threshold is 30 decibels or less at 1000 Hertz, and 70
decibels or more at 2000 Hertz, the rating specialist will
determine the Roman numeral designation for hearing
impairment from either Table VI or Table VIa, whichever
results in the higher numeral. That numeral will then be
elevated to the next higher Roman numeral. Each ear will be
evaluated separately. Id.
The veteran argues he is entitled to at least a 10 percent
initial disability rating for his bilateral hearing loss
because its severity, as documented by his private
practitioner, is worse than that documented by his VA hearing
test. The disability rating for hearing loss is governed by
38 C.F.R. § 4.85 (2005).
The record shows that in October 2002, the veteran received a
hearing test at Lifetime Hearing Clinic which documented
decibel readings of 20/20/20/25 and 25 in the right ear and
20/20/20/65 and 70 in the left ear, with speech recognition
of 100% in each ear.
A VA audiological evaluation in April 2003 revealed the
following pure tone thresholds, in decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
15
15
20
20
LEFT
15
15
15
55
50
The averages thus obtained are 86% for the right ear and 94%
for the left ear. While this test indicates a worsening of
the veteran's hearing capability beyond that tested in
October 2002, with due application of the provisions of 38
C.F.R. § 4.85, Diagnostic Code 6100, Tables VI and VII, the
veteran manifests Level II hearing in the right ear and Level
I hearing in the left ear, mandating a zero percent
disability rating.
In resolving this factual issue, the Board may only consider
the specific factors as are enumerated in the applicable
rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208
(1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).
Having done so, with due and mechanical application of the
rating provisions, the preponderance of the evidence is
against the assignment of a higher disability rating and the
appeal is denied.
Service Connection for a Pulmonary Disorder, including Apical
Lung Scarring
The veteran argues that service connection is warranted for a
pulmonary disorder - specifically, he contends that because
apical lung scarring was noted on a radiographic examination,
he has an undiagnosed illness that should be presumed to have
been incurred by his Persian Gulf War service. The record
also indicates that the veteran is diagnosed as having
chronic obstructive pulmonary disease.
Having carefully considered the claim in light of the record
and the applicable law, the Board is of the opinion that the
preponderance of the evidence is against the claim and the
appeal will be denied.
In general, service connection may be granted for disability
or injury incurred in or aggravated by active military
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303
(2004) . Service connection may also be granted for
disability shown after service, when all of the evidence,
including that pertinent to service, shows that it was
incurred in service. See 38 C.F.R. § 3.303(d) (2004); Cosman
v. Principi, 3 Vet. App. 303, 305 (1992).
In order to establish service connection for the claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999). The determination as to whether these requirements
are met is based on an analysis of all the evidence of record
and the evaluation of its credibility and probative value.
See Baldwin v. West, 13 Vet. App. 1, 8 (1999).
Under the law, a Persian Gulf veteran shall be service-
connected for objective indications of chronic disability
resulting from an illness manifested by one or more
presumptive signs or symptoms that began during active
military service and cannot be attributed to any known
clinical diagnosis. See 38 C.F.R. § 3.317.
The VA shall compensate a Persian Gulf veteran who exhibits
objective indications of chronic disability resulting from an
illness or combination of illnesses manifested by one or more
signs or symptoms such as those listed below, provided that
such disability became manifest during active service or not
later than December 31, 2006 and by history, physical
examination and laboratory tests cannot be attributed to any
known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. §
3.317(a)(1)).
Signs or symptoms which may be manifestations of undiagnosed
illness include, but are not limited to the following:
fatigue, signs or symptoms involving skin, headache, muscle
pain, joint pain, neurologic signs or symptoms,
neuropsychological signs or symptoms, signs or symptoms
involving the respiratory system (upper or lower), sleep
disturbances, gastrointestinal signs or symptoms,
cardiovascular signs or symptoms, abnormal weight loss, or
menstrual disorders. 38 C.F.R. § 3.317(b).
However, the identification of a diagnosis, per se, renders
consideration of an "undiagnosed illness" under statute and
regulation inappropriate. See VAOGCOP 8-98 (In addressing
the question of whether VA may pay compensation under 38
U.S.C. A. § 1117 for disability manifested by symptoms that
either elude diagnosis or are attributed to a poorly- defined
disease such as chronic fatigue syndrome or fibromyalgia, it
is held that section 1117(a) authorizes service connection on
a presumptive basis only for disability arising in Persian
Gulf veterans due to "undiagnosed illness" and may not be
construed to authorize presumptive service connection for any
diagnosed illness, regardless of whether the diagnosis may be
characterized as poorly defined.).
Firstly, a grant of service connection for an undiagnosed
illness is not warranted. The veteran is diagnosed to have
chronic obstructive pulmonary disease - a diagnosed disorder
which has not been linked by competent medical evidence to
any incident of his active military service. By "competent
medical evidence" is meant in part that which is provided by
a person who is qualified through education, training, or
experience to offer medical diagnoses, statements, or
opinions. 38 C.F.R. § 3.159(a).
To the extent that apical lung scarring is present, while
such is a symptom, his service medical records indicate its
presence prior to his service in the Persian Gulf from
November 1990 to June 1991 and not linked to his active
military service from February 1968 to November 1970.
The veteran's apical lung scarring was first noted on chest
x-rays for a flight physical examination on February 16,
1986, during which the veteran presented no pulmonary-related
symptoms or complaints. Chest x-rays from prior and
subsequent flight physicals show the veteran's lungs were
either "within normal limits," or had "negative" results.
These findings establish the veteran manifested apical lung
scarring at least four years prior to his active duty service
in the Persian Gulf, but approximately 16 years after his
initial period of active military duty.
Because the veteran's disorder has been diagnosed, and there
is no competent medical evidence linking the disorder to any
incident of active military service, the appeal is denied..
ORDER
Entitlement to higher initial disability rating for bilateral
hearing loss is denied.
Service connection for a pulmonary disorder, to include
apical lung scarring, is denied.
____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs